12. Termenul maxim de efectuare a verificării şi de emitere a proceselor-verbale de contestare a neregulilor şi de stabilire a creanţelor bugetare prevăzut de art. 21 alin. (23) din O.U.G. nr. 66/2011
12. The maximum time limit for carrying out the verification and issuing the minutes of the contestation of irregularities and establishing budgetary claims provided for in Article 21 para. (23) of Government Emergency Ordinance No 66/2011

Summary/Abstract: The failure to comply with the deadline for carrying out the verification and issuing the minutes of the contestation of irregularities and establishment of budgetary claims, provided for in Article 21 para. (23) of Government Emergency Ordinance No 66/2011 does not entail the illegality of the act, provided that there is no damage. In addition, when the legislator of Government Emergency Ordinance no. 66/2011 intended to specify the sanction in the event of failure to comply with a deadline, it expressly indicated those situations. Thus, the administrative appeal must be made within a maximum of 30 days, and the penalty for failure to comply with the deadline is forfeiture, according to Article 47 para. (4) of Government Emergency Ordinance no. 66/2011. Per a contrario, where it has failed to do so, such a qualification cannot be presumed, especially since penalties must be explicitly provided for by law and not presumed. Therefore, the argument that Art. 21 para. (23) of Government Emergency Ordinance no. 66/2011 is supplemented by the ordinary law, namely by the provisions of Article 185 Civil Procedure Code on the subject of limitation periods, is irrelevant, as long as the legislator's intention to qualify this period as a limitation period does not result from the set of regulations contained in Government Emergency Ordinance no. 66/2011. On the other hand, the EU Member State has the right to set its own deadlines, in accordance with the applicable legal system and what is specific to it, and their legal nature is interpreted in accordance with national legal provisions and case law developed by the courts. Furthermore, the case law of the CJEU cannot concern national procedural rules, and a court cannot apply mutatis mutandis rules in CJEU judgments Regulations which do not have direct applicability in the case before it. As a result, the legal nature of the time limit laid down in Art. 21 para. (23) of Government Emergency Ordinance no. 66/2011 is established with reference to domestic procedural rules, art. 185 para. (1) Civil Procedure Code not being applicable also for the reason that the issuance of the process/notice of finding irregularities is not a right for the competent authority, but an obligation; the failure to fulfill this obligation within the legal time limit cannot entail favorable consequences for those who were to be sanctioned by the act to be issued, because the text would be interpreted against the reasoning that was the basis for its issuance, which was to discipline the control activity and not to exempt beneficiaries of non reimbursable funds from liability.

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