By Raluca Constantin and Marius Ezer
The issue of establishing joint and several liability under Romania’s Fiscal Procedure Code has raised significant difficulties in practice, to the point of jeopardising the very effectiveness of this legal institution.
There have been numerous cases in which decisions establishing joint and several liability have been annulled by the administrative courts, most often on grounds such as: (i) lack of reasoning or inadequate reasoning[1] of such a decision, (ii) failure to prove the bad faith of the person whose liability was established,[2] and (iii) failure to adequately justify the causal link between the actions of the person held liable and the damage[3]/ the debtor’s failure to pay its tax obligations.
This situation was caused either by the deficient manner in which the tax authorities reasoned such decisions (by providing only summary or superficial reasoning, relying on a presumption of bad faith as a basis for establishing liability, without proving and explaining or justifying the concrete and objective reasons and grounds underlying the establishment of liability), or by regulatory deficiencies, given that the provisions of Articles 25 and 26 of the Fiscal Procedure Code regulate several statutory scenarios without laying down specific requirements (for example, regarding the reasoning of decisions) for each of the relevant statutory scenarios.
The regulatory deficiencies were also examined and censured by the Constitutional Court of Romania (“CCR”) in Decision no. 49/2025 of 18 February 2025, published in the Official Gazette of Romania no. 237 of 18 March 2025. By that decision, the CCR upheld the plea of unconstitutionality of the provisions of Article 25(3)(b) and (c) of Law no. 207/2015 on the Fiscal Procedure Code in relation to Article 1(5) of the Romanian Constitution, finding that the challenged provisions do not meet the requirements regarding the quality of the law (clarity, precision, foreseeability). More specifically, the CCR held, in Decision no. 49/2025, that the provisions declared unconstitutional do not specify the criteria necessary for establishing that the conditions triggering the joint and several liability of the legal person are met in the statutory scenarios provided for in Article 25(3)(b) and (c) of the Fiscal Procedure Code.
It is against this broader background that, on 14 October 2026, the Order of the President of the National Agency for Fiscal Administration approving the Procedure for establishing joint and several liability under Articles 25 and 26 of Law no. 207/2015 on the Fiscal Procedure Code, together with Annexes 1–8 to the Order, was published in the Official Gazette of Romania, Part I, no. 859 and 859 bis. The procedure for establishing joint and several liability is set out in Annex no. 1 to this Order (the “Procedure” or the “new Procedure”).
Previously, the procedure for establishing joint and several liability was governed by Order of the President of ANAF no. 127/2014, which regulated the procedure under Articles 27 and 28 of the former Fiscal Procedure Code (i.e., Government Ordinance no. 92/2003 on the Fiscal Procedure Code).
The new Procedure for establishing joint and several liability, approved by the Order, is intended not merely to fill certain gaps or rectify certain isolated deficiencies (identified, among others, by the CCR), but rather to regulate, in a unitary manner, the specific procedure for issuing decisions establishing joint and several liability for each of the different scenarios provided for in Articles 25 and 26 of the Fiscal Procedure Code. It also regulates the competence to endorse and approve such decisions, the procedures for gathering documentation (including documents, information, and indicia, as well as the sources of information that may be accessed by the representatives of the tax authority), the applicable procedural safeguards, and the specific elements underlying such a decision, taking into account the issues identified in judicial practice (particularly those relating to proving or justifying bad faith and the causal link between the act of the liable person and the result, among others).
Indeed, the new Procedure establishes, in a unitary, coherent, and detailed manner, the administrative procedures governing the adoption of decisions establishing joint and several liability, distinguishing between the different statutory scenarios provided for in Articles 25 and 26 of Law no. 207/2015 on the Fiscal Procedure Code and laying down specific requirements for each of these scenarios.
We are reluctant to answer the question of whether the adoption of the new Order has remedied the provisions declared unconstitutional by the CCR in Decision no. 49/2025, given that the CCR examined the constitutionality of the provisions of the Fiscal Procedure Code, which is an organic law, whereas the Order of the President of ANAF, even though it supplements the statutory text declared unconstitutional, cannot and should not be able to amend or supplement the provisions of an organic law, which has superior legal force. However, we will leave this discussion for another occasion.
Accordingly, the Order regulates, in detail, each of the different statutory scenarios under Articles 25 and 26 of the Fiscal Procedure Code, laying down specific requirements for the adoption of decisions establishing joint and several liability, in particular with regard to: (i) the persons to whom the Procedure applies, (ii) the acts that may form the basis for establishing joint and several liability, (iii) the factual elements that may indicate bad faith, (iv) the manner in which the causal link between the act committed by the liable person and its consequences is established, and (v) the verifications required for the tax authorities to substantiate the decision establishing joint and several liability.
As under the previous regulation, competence to establish joint and several liability lies with the enforcement bodies organised within the central tax authorities responsible for administering the debtor’s tax receivables. In concrete terms, joint and several liability is established by the central tax authority administering the debtor’s tax obligations, acting through its enforcement bodies (item 1 of the Procedure).
As a novelty, at item 2, the Procedure distinguishes between the “targeted person” of the procedure for establishing joint and several liability and the “liable person”. Thus, until the decision establishing joint and several liability is issued, the natural or legal persons who may be held jointly and severally liable for the payment of the debtor’s tax obligations are referred to as “targeted persons”. Once the decision has been issued, their status changes and they are referred to as “liable persons”.
The Procedure also clarifies that joint and several liability will always be established exclusively within the limit of the amounts resulting from the actions or omissions of the targeted persons, committed in breach of the legal provisions and leading to the debtor’s failure to pay its tax obligations. It further clarifies that the establishment of joint and several liability concerns the principal and ancillary tax obligations outstanding in the debtor’s tax records on the date on which joint and several liability is established, insofar as those obligations relate to the period during which the targeted persons held the relevant capacity or engaged in conduct that may form the basis for establishing joint and several liability (item 3). This issue was neither addressed nor clarified under the former procedure. Thus, the new Procedure details, for each statutory scenario, the limit up to which joint and several liability may be established, in terms of the tax obligations for which liability may be established (see items 13.5.1., 14.4., 15.4.2, 16.4.2, 17.6.1 and 17.6.2, 18.6, 19.5., etc.).
Another essential clarification brought by the Procedure concerns the categories of obligations for which joint and several liability may be established. Unless otherwise provided by special law, the following are assimilated to tax obligations under item 4 of the Procedure: customs receivables transmitted by the Romanian Customs Authority for settlement through enforcement; mining and petroleum royalties and royalties arising from concession contracts and other contracts for the efficient use of agricultural land, concluded with the State Domains Agency; fines of any kind and other budgetary receivables established in enforceable titles and transmitted to the tax authority for recovery; and other budgetary receivables assimilated to tax receivables by law.
The Procedure also regulates the competence of the enforcement bodies and/or, as the case may be, of the authorised structures to carry out activities aimed at identifying, assessing, and managing the documents and information that may form the basis for initiating the procedure for establishing joint and several liability. In this context, these bodies are authorised to consult databases, with the institutions whose databases may be consulted being expressly set out at item 9(g) of the Procedure, and to request data and information deemed useful or necessary to substantiate the initiation of the procedure, from natural persons, legal persons, and other entities (item 9(h) of the Procedure). The new Procedure also provides for the analysis of the information and documents held, the identification of the targeted persons and their actions, the determination of the periods during which the relevant actions or omissions did or did not occur, and the identification of the tax obligations that may be the subject of the initiation of the procedure for establishing joint and several liability.
Moreover, and of particular evidentiary relevance in future litigation, the new Procedure expressly provides that the elements taken into account in establishing bad faith or imputable conduct do not, in themselves, constitute conclusive presumptions of liability. Rather, they are to be analysed in conjunction with the documents on file, the specific factual situation, the relevant period, the responsibilities of the targeted person, and the causal link between the conduct of the targeted person and the tax obligations concerned.
The Procedure places particular evidence on how the bad faith of the targeted persons is to be established and how the causal link required for establishing joint and several liability is to be analysed and proven. As shown supra, deficiencies in proving bad faith and in establishing the causal link required for establishing joint and several liability were the main reasons for the annulment, in judicial practice, of decisions establishing joint and several liability issued under the previously applicable procedure:
The Procedure also has the significant advantage of specifying, for each statutory scenario provided for in Articles 25 and 26 of the Fiscal Procedure Code, the circumstances in which the respective statutory scenario applies (items 13.1., 14.1., 15.1., 16.1., etc.), as well as the specific act that may form the basis of liability (items 13.3., 14.3., 15.2., 16.3., 17.4. etc.).
Reading the provisions of the Procedure together, the establishment of joint and several liability under Articles 25 and 26 of the Fiscal Procedure Code involves the following steps:
1. The enforcement body identifies elements that may substantiate the initiation of the procedure for establishing joint and several liability, on the basis of the documents and information held, and draws up a Report on the initiation of the procedure, in compliance with the requirements laid down by the Procedure. The template of the report is set out in Annex no. 2 to the Order;
2. The Report is endorsed by the head of the unit within which the tax enforcement officer who handled the file works and is approved by the head of the enforcement body;
3. The enforcement body notifies the person(s) targeted by the Procedure, with a view to hearing them and allowing them to submit their point of view.
Where the competent structure, other than the enforcement body, identifies, in the course of verification activities carried out in accordance with its remit, elements that may substantiate the initiation of the procedure, that structure draws up the Report on the initiation of the procedure for establishing joint and several liability in two counterparts. The report is endorsed by the hierarchical superior of the person who drew it up and approved by the head of the competent structure.
After approval, one counterpart of the Report is sent to the central tax authority administering the tax obligations owed by the debtor, together with the supporting documents and records on which the analysis was based.
Subsequently, the enforcement body verifies the information and documents transmitted and either (i) initiates the hearing procedure, if it holds no information in addition to that contained in the Report; (ii) draws up a new Report, if it holds additional information that may substantiate the continuation of the procedure, and then proceeds with the hearing; or, (iii) if it finds that there are insufficient elements to substantiate the procedure, draws up a Report on the termination of the procedure for establishing joint and several liability. The template of the report is set out in Annex no. 3 to the Order.
4. The hearing of the targeted person takes place after the enforcement body communicates to the targeted person the Notice of summons to the hearing, the template of which is set out in Annex no. 4 to the Order.
Item 46 of the Procedure provides for the targeted person’s right to consult the documentation in the joint and several liability file, to raise objections and make clarifications, and to submit data, information, or documents in their defence. The targeted person may be assisted by a lawyer, by another person advising them, or by a person authorised in accordance with Article 18 of the Fiscal Procedure Code.
The Notice of summons to the hearing is communicated in accordance with Article 47 of the Fiscal Procedure Code, indicating the possibility of holding the hearing via the MFP-ANAF videoconferencing platform. The hearing must take place within 10 working days from the date on which the notice is communicated.
If the targeted person explicitly refuses to attend the hearing, the hearing is deemed to have been completed; however, if the targeted person fails to attend the hearing, the notification procedure is carried out again and a new date for attendance is set. If the targeted person fails to attend on the second date, the hearing is deemed to have been completed and a Note of findings regarding non-attendance at the hearing is to be drawn up. Such non-attendance does not prevent the continuation of the procedure.
By contrast, if the targeted person attends the hearing, Minutes of the hearing are drawn up, recording the statements of the person heard, their objections and clarifications, as well as the documents submitted in their defence. The Minutes are drawn up in two counterparts and are signed by the tax enforcement officer conducting the hearing and by the person heard or their representative. The refusal of the person heard to sign the Minutes does not constitute grounds for nullity and is recorded in the Minutes.
If the hearing is held via the videoconferencing platform, the meeting is recorded, and all discussions, information, clarifications and explanations provided by the targeted person are recorded by means of the electronic transcription system held by the central tax authority. The summary record of the hearing is communicated to the targeted person via the SPV (Virtual Private Space) and attached to the file.
5. Following the hearing, the targeted person may submit a written point of view, together with documents in support of their position, within five working days from the date of the hearing.
6. Once the hearing procedure has been completed, the competent body (the competent structure or, as the case may be, the enforcement body) analyses the documents and data obtained and either (i) draws up the Report on the termination of the procedure for establishing joint and several liability, if the elements on file are not sufficient to substantiate the establishment of joint and several liability, or (ii) draws up, in accordance with the requirements imposed by the Procedure, the Report on the establishment of joint and several liability, if there are sufficient elements to substantiate the establishment of joint and several liability.
7. The Report on the establishment of joint and several liability is drawn up and signed by the tax enforcement officer who handled the file, endorsed by the head of the department within which the officer works, and approved by the head of the enforcement body.
8. On the basis of the Report on the establishment of joint and several liability, the Decision establishing joint and several liability is issued. The template for the Decision is set out in Annex no. 8 to the Order. The Decision constitutes both a title of claim and a fiscal administrative act. Item 72 of the Procedure sets out the mandatory elements that must be included in the Decision.
9. The payment deadline for the tax obligations is determined in accordance with the rules laid down in Article 156(1) of the Fiscal Procedure Code. Once the payment deadline has expired, the Decision becomes an enforceable title in accordance with the applicable rules.
10. The Decision establishing joint and several liability is communicated to the liable person in accordance with Article 47 of the Fiscal Procedure Code and, in the case of foreign liable persons, in accordance with Article 318 of the Fiscal Procedure Code.
11. Following communication of the Decision establishing joint and several liability, the enforcement body transmits a copy of the decision to the central tax authority with jurisdiction to administer the tax obligations of the liable person, so that the Decision may be entered in the tax records.
12. The Procedure also regulates the rules that apply whenever the tax obligations for which liability has been established are extinguished, in part or in full (items 78–82). It further provides that enforcement measures cease as soon as the tax obligations have been fully extinguished.
Item 84 of the Procedure expressly sets the time limit for filing an administrative appeal against the Decision establishing joint and several liability at 45 days from the date of communication of the decision, as opposed to the 30-day time limit provided for under the former procedure. The appeal must be filed with the central tax authority that issued the decision.
In addition, item 85 of the Procedure regulates the manner in which the decisions issued in resolving the appeal, together with the Decision establishing joint and several liability itself, may be challenged in court. The provisions of Administrative Litigation Law no. 554/2004 are applicable in this respect.
Furthermore, item 86 of the Procedure provides that, where there is a risk of the liable person absconding, concealing, or squandering their assets, thereby jeopardising or considerably hindering the collection of tax receivables, precautionary measures may be ordered under the conditions of Article 213(3) of the Fiscal Procedure Code.
For our part, we regard the new Procedure as an encouraging development toward establishing a clear mechanism for the treatment of the recovery of tax receivables in the cases set out in Article 25 of the Fiscal Procedure Code. The Procedure addresses issues identified in judicial practice concerning compliance with the principle of legality, the effective exercise of the right of defence, and an effective judicial review of the decisions establishing joint and several liability adopted by the authorities. Indeed, where the procedures are clearly and precisely regulated, the courts are better equipped to carry out a rigorous review of the legality of such decisions.
[1] Decision no. 9567/2023 of 7 March 2024, delivered by the Craiova Court of Appeal, decision 23355366/2022, delivered by the Bacău Tribunal, Decision no. 894563/2022 of 2 June 2022, delivered by the Iasi Court of Appeal, Decision no. 3948436/2022 of 2 May 2022, delivered by the Constanta Court of Appeal.
[2] Decision no. 530/2025 of 5 February 2025, delivered by the High Court of Cassation and Justice, Decision no. 75798/2024 of 14 April 2024, delivered by the Maramures Tribunal, Decision no. 8645688/2023 of 15 March 2023 of the Craiova Court of Appeal.
[3] Judgment 9394233 of 22 December 2022, delivered by the Timisoara Court of Appeal.
